Few public debates have been as confusing or more filled with flawed legal arguments than the fight over content moderation on social media. But on May 28 Donald Trump took action that brought the true stakes into sharp focus. Acting to protect his own Twitter feed, Trump initiated a direct attack on free speech online.
Here’s the short version of what happened: The day after Twitter attached a fact-check link to Trump’s tweeted attack against mail-in balloting, an enraged Trump signed a truly remarkable executive order that threatens to undermine one of the most important statutory protections of free speech in American law.
Its most consequential provision directs the secretary of commerce to “file a petition for rulemaking” to “clarify” – among other things – the conditions under which content moderation is takin “in good faith” within the meaning of Section 230 of the Communications Decency Act.
If you’re not a lawyer, the chances are good that the paragraph above made little sense. In plain language, however, the president is attempting to use his executive power to reinterpret an act of Congress – and that act of Congress just so happens to be the law that made the modern internet possible.
I’ve explained Section 230 at length before, but it’s worth briefly explaining again. By 1995 a pair of court decisions in New York had placed the young tech industry in a disturbing bind. Taken together, the two cases stated a principle that if internet content providers did not moderate user content, then they could not be held liable for what users wrote. If they did, moderate that content, then they were responsible for it.
So Congress acted. Section 230 not only stated that interactive computer services aren’t treated as the “publisher or speaker of any information provided by another information content provider,” it also specifically carved out a right to moderate content and protected companies from liability.
This is the provision that empowers Facebook to keep nudity off its pages, or allows a newspaper to delete reader comments than contain racial slurs, or permits Twitter to delete tweets that glorify violence. It does not require social media companies (or any other internet platform) to be neutral. They have the right to shape the culture and community of their site.
The result of Section 230 has been a happy explosion of free speech online. For more than two decades we’ve taken for granted our ability to post our thoughts and arguments about movies, music, restaurants, religions, and politicians. While different sites have different rules and boundaries, the overall breadth of free speech has been extraordinary. If you want to express yourself online, you can.
Trump, furious that Twitter added a fact check to his balloting tweet, wants to further insert the government into the determination of whether any given internet company is acting “in good faith.” The message to Twitter or any other internet company is an ominous, “I’m watching.”
But the order goes even farther. It directs the Federal Trade Commission to “consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce.” Specifically, it asks the FTC to inquire whether internet companies “restrict speech in ways that do not align with those entities’ public representations about those practices.”
The order also directs the attorney general to create a “working group” of state attorneys general to explore creating model state legislation to further regulate social media companies and to engage in close examination of social media moderation policies, including the algorithms that promote or suppress different forms of content.
And lest anyone doubt that the president’s actions are deliberately political, the order specifically calls out Twitter for not flagging Representative Adam Schiff’s tweets regarding the “long-disproved Russian Collusion Hoax.”
The message from the president is clear – make the moderation choices he likes, or he’ll impose unprecedented oversight over the choices of private citizens and private corporations.
There’s an important irony at work here. Trump is taking action even though he’s enjoyed a remarkable freedom of action online. Twitter has time and again declined to apply its terms of service to the president’s tweets. He has enjoyed immunity from the rules that bind the rest of Twitter’s users.
For example, his repeated tweets demanding investigation of the thoroughly-debunked claims that MSNBC host Joe Scarborough is responsible for the death of a young aide easily violate Twitter’s prohibition against targeted harassment and abusive behavior. His May 28 tweet threatening Minneapolis protesters and declaring “when the looting starts, the shooting starts” remains up, even though Twitter flagged it for violating rules against “glorifying violence.”
There are many reasons why millions of Republicans overlooked their personal distaste for Donald Trump in 2016. Many were convinced that he’d hold off politically-correct threats to free speech and also shrink the administrative state. But through his executive order, Trump is empowering attacks on citizen speech and doing so by expanding the reach of the federal bureaucracy.
I object to some of Twitter’s rules. For example, its definitions of abusive behavior are broad and vague, but I have a clear choice – I can comply with the rules or leave the platform. After all, I didn’t create Twitter. I don’t run Twitter. I don’t even pay to use Twitter. If I don’t like Twitter, I can take my thoughts to Facebook, Snapchat, Reddit, Instagram, TikTok, or the countless comment boards that saturate the web. That’s my choice.
Trump’s choice, however, is to prod his government to create rules that threaten the autonomy of Americans who seek to shape the culture of the companies they create. Whether Trump likes it or not, Twitter has its own free speech rights, and it can exercise those rights to fact-check Trump, delete Trump’s tweets, or even block Trump entirely from its private platform. Moreover, political preferences are not evidence of “bad faith.” Instead, when Twitter expresses those preferences it’s exercising core liberties guaranteed by the First Amendment.
The First Amendment protects citizens from the government. It does not protect the president from Twitter. Trump’s executive order jump-starts a process that could well put citizen choices under a politically-motivated government microscope. He’s not just defying Congress, he’s endangering the Constitution. American liberty should not hinge on Trump’s satisfaction with the status of his Twitter feed.
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